TRUTH IN SENTENCING: NEW GUIDLINES CONSIDERED

Last week, the Alabama Sentencing Commission handed down a new set of
voluntary guidelines for judges to use in sentencing felony offenders. The
guidelines will now go to the state Legislature, and if they are approved
there, would go into effect in October.

The new guidelines are designed to serve three basic purposes: reduce
disparities in sentence lengths for similar crimes, reduce prison
overcrowding and bring Alabama one step closer to "truth in sentencing."
These last two issues are closely related. Lack of funds and prison
overcrowding have led to massive waves of parole hearings for criminals
serving lengthy sentences. In several local cases, individuals serving 15
and 25-year sentences for "non-violent" felonies are being given a shot at
freedom after having been incarcerated for less than a year.

According to Assistant State Attorney General Rosa Davis, who serves on the
commission, the new guidelines are based on a series of factors outlined on
a set of worksheets and sentencing tables.

"We looked at a great deal of historic sentencing data, and we weighed
various factors that need to be taken into account," she explained. "Then
there's a separate sheet that rates each factor in determining who goes to
prison and for how long.

"Basically," Davis continued, "we came up with a model that predicted
sentence lengths. That model came out a little higher than what we were
actually seeing people serve, so we made more adjustments. These guidelines
reflect what the real sentences are now."

Changing sentences

Although there are a host of variables involved, the new guidelines
essentially keep the existing penalties for personal crimes, or those
involving some degree of violence, such as murder, manslaughter, rape,
robbery and assault.

"In those cases," Davis said, "the idea is still to put people in prison for
as long as possible."

But property and drug crime sentencing guidelines will receive fairly
radical overhauls.

Davis said the new standards translated into a 20 percent reduction in the
minimum sentences for property crimes such as theft and a 30 percent
reduction in the minimum sentence for drug crimes, including felony
possession of marijuana, possession of a controlled substance, distribution
of marijuana or a controlled substance, and felony DUI.

But the guidelines will still allow for some latitude, she continued.

"You have to take into account, in distribution cases, whether you are
looking at a street corner seller who is going to replaced in an hour or
whether your looking at a professional, career dealer. The score is going to
be based on the offense, but the higher end will represent the career
sellers, with low level people looked at differently.

"But you eliminate the situation where a 16-year-old is sent to prison for
25 years because of mandatory enhancements."

The proposal will not do away with the enhancements entirely, but the
enhancements are "factored in" to the new guidelines, Davis said.

"There are still some people who are going to want to keep everyone in
prison for as long as possible. But you've got a system right now with
28,000 inmates in it, and it was built for 13,000.

"If you're going to keep them in there longer, you're either just going to
have to keep stuffing them in or build more prisons. And of course you want
to reserve as much space as you can for the most dangerous, violent felons.

"But Alabamians don't want to build more prisons. So you have people saying
just put them in tents, and at one time I was one of those myself.

"That's short-sighted. Warehousing only creates better offenders," she said.
"But the other thing is, prison isn't always the best thing in drug or
property cases. You can often accomplish as much with a shorter, community
based sentence."

For less dangerous convicts, community-based punishments are more likely to
be effective, she said.

"Losing your freedom in the community is a terrible punishment," she said.
"Plus, it creates opportunities for the convict to get treatment for drug
addiction, and in some cases they would be out enough to earn a living and
contribute to society. I'm not saying everyone convicted of a non-violent
crime deserves a pat on the back, but you have to take a hard look at what's
available."

Flexibility

As she mentioned earlier, the new guidelines are voluntary.

"If a DA or someone comes in and tells the judge this person has numerous
other offenses and needs to be sent away for a long time, that option is
available. A judge can follow the guidelines all the time, or ignore them,
or follow them 75 percent of the time. There is still a range," she said.

The new guidelines, if approved, would also be an incremental step toward
truth in sentencing.

"There is overwhelming support for truth in sentencing in Alabama," Davis
said. "But in other states that have gone directly to that goal, they have
created huge resource problems. That's why Alabama is taking a more gradual
approach."

View from the bench

None of the judges who are not also members of the commission have received
copies of the newly proposed guidelines.

But Talladega County Presiding Circuit Judge Julian King and St. Clair
County Presiding Circuit Judge Bill Hereford are familiar with the general
terms of proposal, and they have mixed feelings on the issue.

"In the bigger scheme of things," King said, "if the Pardons and Parole
Board continues letting people out as quickly as they are now, there won't
really be any major impact.

"We've got people now serving life sentences that are being released after
only serving a minute portion of their sentences. If I sentence someone to
20 years and it's discounted 30 percent, it's still not going to matter if
they're up for parole in six months.

"It's currently impossible for me to discuss the details of this
intelligently without a copy of the report, but from what I heard at the
judge's conference in January, the formula is going to complicate the
process of sentencing even further," King continued. "You're going to be
placing an additional and unnecessary burden on the trial courts.

"When someone in my court pleads guilty or is found guilty, I order a
presentence investigation. The state board of pardons and paroles wants 60
days to prepare that report. In most cases, I will get the bulk of the
reports less than a week prior to sentencing.

"My next sentencing docket has 56 cases on it," he continued. "Each of those
presentence reports averages about six pages. So now, in addition to the
more than 300 pages I would have to read in less than a week, I would also
need to compute all of these formulas if I were to use the guidelines.

"That is going to consume an enormous amount of time. As it is now, I end up
reading the majority of those reports at home in the evenings. Quite
frankly, I don't know when I would be able to find the time to do these
complex mathematical calculations that appear to me to be designed to help
the jail population and strip judges of their discretion.

"It appears to me that the commission is trying to turn judges into robots,"
he said. "I may change my mind when I see them, but based on my limited
knowledge, it is an attempt to remove discretion from an elected official. I
would much prefer that the Legislature decide appropriate penalties and set
ranges as they have in the past.

"I intend to continue following the sentencing laws passed by the
Legislature, and I hope the Legislature does not buy into the guidelines
based on formulas rather than on common sense. You can't dispense justice
that way."

The real problem as King sees it is not with the sentencing ranges but with
the enhancements and habitual offender act.

"Those things have created lots of problems and increased the number of
people in the prison system. That also takes common sense out of the
process, and takes discretion away from the judge," he said.

King also questioned the wisdom of creating more uniform sentences.

"If my sentences are too harsh or too lax for the people of this county,
they already have a remedy. They can vote me out of office."

Hereford has also not seen the commissions report, but was familiar with it.

"For one thing," he said, "they're voluntary, which should tell you
something. But anything that lends structure to the sentencing process and
provides guidance during that process is going to be helpful, I think. I
always look for guidance where I can get it, not only from the written rules
but from DA's and defense attorneys also. Sentencing is a difficult process,
at least for me personally."

Although Hereford appreciated the additional guidance, he added that
"mandatories always frighten me a little bit. I could have two cases of
burglary in the third degree come before, and one defendant would deserve
probation and the other would deserve 10 years. That's the range for that
particular offense now.

"So I understand the concern about sentencing disparities across the state,
but you have to have that. There are sentencing disparities in my own
courtroom, and there should be, never mind how a judge in Mobile County
might handle it.

"I can understand it on one level," Hereford said. "For example, when I was
a young attorney, I can remember cases where I was representing one person
and another attorney was representing somebody else. The two clients would
be in the same line of work, making the same money, and have the same number
of children. My client would get hit with child support of $300 per week,
and the other guy would pay $25 per week.

"Since I've been on the bench, I've been a stickler on equal payments in
those situations. But I really don't see a way to apply that to sentencing
in a criminal case."

"I'm glad people are thinking about these issues," Hereford added, "and I
believe the commission's goals are laudable, but I still have concerns.

"I don't want to poo-poo the work of the commission in any way, but judges
tend to like calling their own shots," he said. "But I haven't seen the
specifics of the proposal yet, so right now I'm not waving the flag for one
side or the other.